15-day suspension recommended after worker found guilty of using a department vehicle for an unauthorized purpose

15-day suspension recommended after worker found guilty of using a department vehicle for an unauthorized purpose
Dep't of Sanitation v. Pulliam, OATH Index No. 1976/08

A sanitation worker was found to have disobeyed a supervisor's order and used a Department truck for an unauthorized purpose when he drove to a pay phone to call the police after allegedly being assaulted by a civilian on his route. Pulliam’s supervisor, after checking to make sure the respondent was not hurt, had ordered him to continue on his route while he called the central office to find out how to proceed. Administrative Law Judge Julio Rodriguez recommended a suspension of 15 days. He dismissed a second charge of unauthorized absence where the respondent claimed that he had gone on a bathroom break, and prior cases indicated that workers are vested with some discretion as to when and where to use the bathroom.

[For the full text of the decision, click on the title of the decision.]

 

The government must honor its promise not to disclose the names of individuals asked to disclose certain information – at least for the present

The government must honor its promise not to disclose the names of individuals asked to disclose certain information – at least for the present
Harbatkin v New York City Dept. of Records & Info. Servs., 2012 NY Slip Op 04277, Court of Appeals

This action arose as the result of the City of New York providing redacted records in response to a Freedom of Information request for records resulting from the New York City Board of Education’s investigation of a large number of teachers and other employees suspected of being present or former members of the Communist Party in the1950's. These investigations included interviews with many individuals who, under the promise of confidentiality, were asked to provide the names of those who had been in the Communist Party with them.*

An historian of the period sought disclosure of unredacted transcripts of these interviews under the Freedom of Information Law (FOIL).

The Court of Appeals held that the historian was “entitled to everything in the transcripts except material that would identify informants who were promised confidentiality.”

The Court explained that “today, more than half a century after the interviews took place, the disclosure of the deleted information would not be an unwarranted invasion of personal privacy” noting that this was not always true as “at the time of the investigations, and for some years thereafter, public knowledge that people were named as present or former Communists would have subjected them to enormous embarrassment, or worse.” In any event, said the court, any such embarrassment would be much diminished today because “the activity of which they were accused took place so long ago, and because the label "Communist" carries far less emotional power than it did in the 1950s.”

Balancing these “diminished claims of privacy” against the claims of history, the court said that “The story of the Anti-Communist Investigations, like any other that is a significant part of our past, should be told as fully and as accurately as possible, and historians are better equipped to do so when they can work from uncensored records.”

There was a limitation on providing such records "unredacted," however. The Court ruled that with respect to the disclosure of the names of the interviewees who were promised that "no one would find out they were being interviewed," that promise was required to be honored.

The Court of Appeals said that it was “unacceptable for the government to break that promise, even after all these years,” commenting that “[p]erhaps there will be a time when the promise made to [such individuals], and to others similarly situated, is so ancient that its enforcement would be pointless, but that time is not yet.”

* NYPPL comments: Education Law §§3021 [adopted in 1949 and sometimes referred to as the Feinberg Law] and 3022, respectively provide for "loyalty oaths" and for the “elimination of subversive persons from the public school system”]. Educators involved in “Subversive activities” were “disqualified” for employment. In 1967 these provisions were ruled unconstitutional by the U.S. Supreme Court [Keyishian v. Board of Regents, 514 U.S. 673] on the grounds that they were [1] unconstitutionally vague and [2] violative of the individual's First Amendment rights of free speech and association. 

As to positions in the Classified Service, the Civil Service Law was amended by adding §105, the so-called “Anti-red Law,” which was challenged in Keyishian by co-plaintiff George E. Starbuck, an employee in the Classified Service.

The Supreme Court held that "Civil Service Law §105, subd.1(c), and Education Law §3022, subd. 2, are invalid insofar as they proscribe mere knowing membership without any showing of specific intent to further the unlawful aims of the Communist Party of the United States or of the State of New York."

The Keyishian decision is posted on the Internet at: http://scholar.google.com/scholar_case?case=15934266528750676067&q=keyishian+v.+board+of+regents&hl=en&as_sdt=2,33&as_vis=1

The Harbatkin decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04277.htm

An administrative decision denying an application for accidental disability retirement vacated because of a lack of evidence in the record supporting the determination

An administrative decision denying an application for accidental disability retirement vacated because of a lack of evidence in the record supporting the determination

Baranowski v Kelly, 2012 NY Slip Op 04208, Appellate Division, First Department

A New York City police officer filed an Article 78 petition seeking to vacate the denial of his application for accidental disability retirement based on a work-related incident involving his carrying an individual from a burning building.

The Medical Board had found that the officer suffered from a disabling congenital condition that prevented him from performing his duties as a police officer and recommended he be awarded ordinary disability retirement benefits rather than an accidental disability retirement allowance.

The officer, on the other hand, had contended that he was entitled an accidental disability retirement allowance because his congenital condition became permanently aggravated as a result of his rescuing the individual. The Appellate Division noted that it had remanded the matter to the Medical Board on earlier two occasions, asking the Board for evidence supporting its conclusion that officer's disability was not service-related.

However, said the Appellate Division, “the Medical Board's finding that [police officer’s] congenital condition was only temporarily exacerbated by the incident was based solely on conjecture” as the Board failed to cite anything in the record indicating that the condition improved before becoming permanently disabling.

Accordingly, it sustained Supreme Court’s ruling vacating the denial of the police officer’s application for accidental disability retirement benefits.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04208.htm

=======================

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========================

Application of the federal Hatch Act barring partisan political activities by certain State and municipal employees

Application of the federal Hatch Act barring partisan political activities by certain State and municipal employees
Juan Molina-Crespo v United States Merit Systems Protection Board, 547 F.3d 651

Juan Molina-Crespo served as the Executive Director of the Lorain County Children and Families First Council (“LCCFFC”), an Ohio government agency that is financed in part by the federal government. The federal government provides funds to Ohio agencies, which are then passed through to the LCCFFC. The United States Merit Systems Protection Board [Board] determined that Molina-Crespo violated the federal Hatch Act [5 U.S.C. § 1502(a)(3)], which regulates the political activity of certain state employees who administer federal funds. The Board ruled that Molina-Crespo’s actions in violation of the Hatch Act warranted his removal.

The Circuit Court of Appeals said: “It is undisputed that, as Director, Molina-Crespo was subject to the Hatch Act because he was “an individual employed by a State . . . agency whose principal employment is in connection with an activity which is financed in whole or in part” by the federal government.”

Molina-Crespo’s difficulties arose when he declared his candidacy in a primary election for the office of Lorain County Commissioner. The United States Office for Special Counsel (“OSC”), the federal agency charged with administering the Hatch Act, advised him that his candidacy violated § 1502(a)(3) of the Act and that he would either have to resign his position at the LCCFFC or withdraw his candidacy in order to comply with the Act’s requirements.

Molina-Crespo, however, told the OSC that he did not consider himself a “covered employee” subject to the Act because the federal funding the LCCFFC received first passed through various state agencies.

Although Molina-Crespo’s candidacy for Lorain County Commissioner ended when he failed to win the Primary, the OSC filed a formal complaint with the MSPB alleging that Molina-Crespo violated the Act by being a candidate for elective office.

Ultimately the Board ordered the LCCFFC to remove Molina-Crespo from his position as Director within thirty days and warned that, if the LCCFFC failed to dismiss Molina, it would lose federal funds equal to two years of Molina-Crespo’s pay. Molina-Crespo then resigned from his position and sued, challenging the constitutionality of the Hatch Act together with allegations that the Act violated his First Amendment rights and constitutional guarantees of due process and equal protection.

The court noted the Supreme Court has addressed the constitutionality of the Hatch Act’s restrictions on federal employees’ political activities, and has concluded that the Act’s prohibitions are constitutional, citing United Pub. Workers v. Mitchell, 330 U.S. 75 and in Carver v. Dennis, 104 F.3d 847, and that the Sixth Circuit had earlier concluded that there is no fundamental right to be a candidate for political office. Rejecting Molina-Crespo’s efforts to distinguish between federal and state employees with respect to the application the Hatch Act, the Circuit Court of Appeals ruled that a state employee’s participation in political activities violated the Hatch Act and warranted his or her removal from his or her state position.

Similarly, the Circuit Court of Appeals rejected Molina-Crespo contention that the Hatch Act violates the Equal Protection Clause.

Finally, the court held that the Board did not abuse its discretion in concluding that Molina-Crespo’s violation of the Hatch Act justified his removal.

A relevant decision, Matter of Blackburne, 211 AD2d 13, [motion to appeal denied, 86 N.Y.2d 705], holds that an individual otherwise subject to a “due process disciplinary hearing” such as that provided by a Taylor Law agreement or by State Law, may be summarily removed from his or her position on the authority of a Board determination. The Blackburne decision, which addressed the right of an individual to file a Taylor Law contract disciplinary grievance after the Board directed his removal from his position for violating the Hatch Act, held that arbitration would offend public policy as it "would significantly lessen the efficacy of the Hatch Act and frustrate its purpose and scope."

The full text of the Molina decision is posted on the Internet at:

http://www.ca6.uscourts.gov/opinions.pdf/08a0419p-06.pdf

N.B. As earlier noted, officers and employees in the executive branch of state and local government whose principal employment involves an activity financed in whole or in part by federal loans or grants are subject to the Hatch Act. However, certain public officers such as the governor, the mayor of a city, and the elected head of an executive department not in the classified service are exempted, as are individuals employed by educational or research institutions which are supported in whole or in part by the State or a political subdivision of the State.

Another key element of the Hatch Act provides that while public officers and employees may be members of a political party and even serve as officers in that party, they cannot use their official authority or influence for the purpose of interfering with or affecting the results of such elections or the nominations of candidates for those elective offices. Also direct or indirect coercion of public workers to make a loan or to contribute anything of value to an individual or a party or other organization for political purposes is prohibited.

Union presence during an interrogation of a unit member by the appointing authority

Union presence during an interrogation of a unit member by the appointing authority

Seabrook v City of New York, 57 AD3d 232

Norman Seabrook, individually and as President of the Correction Officers' Benevolent Association, challenged the policy of not allowing an employee to consult with a union representative after a question is posed and before an answer must be given, at an interrogation conducted pursuant to [New York City] Mayoral Executive Order No. 16.

Mayoral Executive Order 16 requires city employees to report allegations of corruption to City's Department of Investigation.

The exclusion of union representatives, said the court, "ensures that the charges will be probed confidentially and professionally by investigators independent of the employee's own agency and superiors."

Holding that this policy “was reasonably designed to promote truthful responses by discouraging coaching,” the Appellate Division concluded that such action did not deprive the employee of his right to union representation under Civil Service Law §75(2) or National Labor Relations Bd. v J. Weingarten, Inc. (420 US 251 [1975]).

A similar issue was addressed by the Appellate division in City of Rochester v Public Employment Relations Board, 15 AD3d 922, Leave to appeal denied, 4 N.Y.3d 710. In Rochester the Appellate Division, Fourth Department, held that PERB abused its discretion when it decided that the City of Rochester committed an improper employer practice in violation of Civil Service Law §209-a(1)(a) (The Taylor Law) by denying city police officers, who were union members, access to union representation during a criminal investigation interview.

The Fourth Department said that "PERB abused its discretion in expanding a public employee's rights to include the right to have a union representative present during a criminal investigation" as New York State "has a strong public policy that prohibits union interference with criminal investigations."

The full text of the Seabrook decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09471.htm

The text of Executive Order 16 is posted on the Internet at:

http://www.nyc.gov/html/doi/html/whistblr-eo16.html

 

A court order must be “clear and unequivocal” in order to hold a party in contempt for its alleged “failing to comply”

A court order must be “clear and unequivocal” in order to hold a party in contempt for its alleged “failing to comply”

Storman v New York City Dept. of Educ., 2012 NY Slip Op 04217, Appellate Division, First Department

Supreme Court granted, among other things, a motion to hold the New York City Department of Education (DOE) in contempt for its alleged failure to comply with a judgment.

The Appellate Division unanimously reversed the Supreme Court’s action, commenting that it was acting “In the interest of justice, we nostra sponte* [in granting] DOE leave to appeal from the contempt order … which was "made in a proceeding against a body or officer pursuant to article 78" and therefore was not appealable as of right” (see CPLR 5701[b][1]).

The court explained that Supreme Court's “judgment to remand for ‘further proceedings’ was not a ‘clear and unequivocal’ mandate, and thus DOE should not have been held in contempt for allegedly disobeying it.” The remedy, if any, said the Appellate Division “lies in seeking to clarify the … order, which will allow the court to issue a clear and unequivocal mandate.”

Considering a related aspect of the appeal, the Appellate Division noted that the administrative hearing conducted by the Chancellor's Committee "was not determinative but merely advisory" to the Chancellor and thus the "arbitrary and capricious" standard of judicial review applies, not the "substantial evidence" standard.

Accordingly, said the court, “Applying the proper standard, DOE's determination was not arbitrary and capricious, but was rationally based in the record, which included the investigator's report and the testimony of the investigator and principal at the administrative hearing,” citing Murane v Department of Education, 82 AD3d 576.

* Nostra Sponte - an action by a court undertaken on its own inherent authority.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04217.htm

Employee terminated after being found guilty of deliberately striking his superior with a duffel bag

Employee terminated after being found guilty of deliberately striking his superior with a duffel bag

Human Resources Administration v. Power, OATH Index No. 879/12

OATH Administrative Law Judge Ingrid M. Addison sustained charges Civil Service Law §75 charges alleging that an agency employee deliberately struck his supervisor with his heavy duffel bag and continued walking without stopping even though the supervisor was pinned to the wall.

Judge Addison recommended dismissal of two charges [1] that the individual intimidated a co-worker by staring through her office window and [2] that he failed to evacuate the building as directed by building security, finding the proof insufficient to establish guilt of the misconduct alleged.

The ALJ recommended that the employee be terminated based on the charges found to have been proven in the course of the disciplinary hearing. 

The Commissioner adopted the Administrative Law Judge’s findings and recommendation, dismissing the employee from his position with the agency.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-0879.pdf

Selected Rulings posted by PERB

Selected Rulings posted by PERB 

Matter of Chemung County Sheriff’s Association, Inc., Decision 44 PERB 3026, U-29007

The Board reversed a decision of an Administrative Law Judge (ALJ) that had found that the Chemung County Sheriff’s Association, Inc. (Association) violated §209-a.2(b) of the Public Employees’ Fair Employment Act (Act) when it sought interest arbitration of a nonarbitrable proposal under §209.4(g) of the Act.

The Board held that the joint employer’s second amended charge, which alleged for the first time that the Association’s General Municipal Law (GML) §207-c hearing proposal was nonarbitrable under §209.4(g) of the Act, was untimely because it did not relate back to the joint employer’s original claim challenging the mandatory nature of the proposal under the Act.

Finally, the Board held that the Association’s GML §207-c hearing proposal to permit a hearing officer to issue a binding decision, subject to review by the courts under CPLR Article 78, was mandatory under City of Watertown v. New York State Public Employment Relations Board, 97 NY2d 73, [33 PERB 7007].

Recipient of workers' compensation benefits may not sue his or her employer “in its landlord role”

Recipient of workers' compensation benefits may not sue his or her employer “in its landlord role”

Weiner v City of New York, 2012 NY Slip Op 04207, Court of Appeals

Mark Weiner was employed by the New York City Fire Department as an Emergency Medical Technician. Injured in the course of his performing his duties, he applied for, and received, workers' compensation benefits from his employer - the City of New York.

Weiner subsequently sued the City and the New York City Parks and Recreation Department alleging both “common law negligence and a cause of action under General Municipal Law §205-a.” According to Weiner, the City-maintained boardwalk was poorly illuminated, resulting in his being injured.

The Appellate Division, reversing a Supreme Court ruling to the contrary, held that Weiner's action was barred by his receipt of workers' compensation benefits and that he could not sue the City “in its landlord role.”

The Court of Appeals, citing Gonzales v Armac Indus., 81 NY2d 1, sustained the Appellate Division’s decision, commenting that worker’s compensation benefits are "[t]he sole and exclusive remedy of an employee against his employer for injuries in the course of employment."

The Court explained that "In exchange for the security of knowing that fixed benefits will be paid without the need to resort to expensive and sometimes risky litigation, … the employee has been asked to pay a price in the form of the loss of his [or her] common-law right to sue his [or her] employer in tort and perhaps to enjoy a more substantial recovery through a jury award."


In the words of the court: “Weiner's principal argument relies on a difference in wording between General Municipal Law § 205-a (pertaining to firefighters) and General Municipal Law §205-e (pertaining to police officers). Section 205-e contains the same statement found in §205-a that the cause of action created by the statute exists "[i]n addition to any other right of action or recovery under any other provision of law" (General Municipal Law §205-e [1]).


However, said the Court, in addition §205-e explicitly provides that "nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers' compensation law."

Although Weiner argued that the omission of this §205-e language concerning workers' compensation law in §205-a was deliberate, the Court said that it disagreed, holding that “Had the Legislature intended to give firefighters, but not police officers, the right to sue as well as receive workers' compensation benefits, this distinction, we are certain, would have been evident in the legislative history.” Rather, concluded the court, “it was not the intent of the Legislature to allow recipients of workers' compensation benefits to sue their employers in tort under §205-a.”*

Noting that it was not addressing the question of whether emergency medical technicians who are employed by fire departments and are not recipients of workers' compensation benefits are entitled to the right of action provided by §205-a, or whether the right of action is limited to firefighters, the Court noted that it has “long refused to condone the circumvention of the Workers' Compensation scheme by means of a theory that would allow an employer to be sued in its capacity as property owner.”

Here, said the court, “[a]n employer remains an employer in [its] relations with [its] employees as to all matters arising from and connected with their employment" and Weiner's injuries arose from and were connected with his employment as an emergency medical technician.


* See the Governor's "Approval Memorandum" in the "bill jacket" of Chapter 703 of the Laws of 1996.


The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04207.htm

=======================

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========================

Administrative Law Judge holds that intent is a pre-requisite for a finding of misconduct

Administrative Law Judge holds that intent is a pre-requisite for a finding of misconduct

OATH Index No. 802/12

A sanitation worker was charged with committing misconduct for being absent without leave (“AWOL”).

The worker, however, established that he was absent on the days charged because voices told him he would be killed if he attended in the course of the disciplinary hearing. The worker also submitted medical records documenting a history of his mental disability.*

Because intent is a pre-requisite for a finding of misconduct, OATH Administrative Law Judge Faye Lewis recommended dismissal of the charges.

In the words of Judge Lewis, “Where respondent’s disability caused him to have a sincere belief that he would be killed if he went to work, he cannot be blamed for not doing so. Respondent lacked the intent that is a prerequisite under section 75 of the Civil Service Law for a finding of misconduct. Therefore, his absence without authorization did not constitute misconduct.”

The ALJ also noted that the agency is not precluded from seeking to place the employee on disability leave [see Civil Service Law §72.

* In an administrative disciplinary action the accused “may defend against the charges by showing that he [or she] lacked the requisite intent to commit the charged misconduct because he was mentally incapacitated. Such a defense is in the nature of an affirmative defense which respondent bears the burden of proving by a preponderance of the evidence.” Health & Hospitals Corp. (Lincoln Medical & Mental Health Ctr.) v. Bruce, OATH Index No. 138/10

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-0802.pdf

Changing payroll-payment mode a mandatory subject of collective bargaining

Changing payroll-payment mode a mandatory subject of collective bargaining
United College Employees of Fashion Institute of Technology and Fashion Institute of Technology, PERB U-27057

The Board affirmed the decision of the ALJ that FIT violated §209a.1(d) of the Act when it unilaterally changed a past practice of paying day adjunct faculty represented by UCE on the basis of 16 weeks of work, thereby reducing their salaries by one-sixteenth.

Finding that a cognizable past practice of payment for 15 weeks of instruction and one week of registration had existed for almost 30 years established a reasonable expectation that it would continue unchanged, the Board rejected FIT's argument that it had no actual or constructive knowledge of the practice.

The amount in the annual budget represented by the 16th week, the actions of management employees in approving both payroll and the budget along with the longevity of the practice were considered by the Board.

The Board also found that the practice involved wages and the method for calculating the payment of salary, both mandatory subjects of negotiations.

Finally, the Board rejected FIT's argument that the payment for the 16th week, during which little or no duties might be performed, was an unconstitutional gift of public monies.

Discrimination complaint dismissed because law did not require an accommodation at the time the request for an accommodation was made

Discrimination complaint dismissed because law did not require an accommodation at the time the request for an accommodation was made

Rappo v NYS Division of Human Rights, 57 AD3d 217

The New York State Division of Human Rights dismissed Frances V. Rappo’s claim that she had been unlawfully discriminated against by her former employer, the New York City Human Resources Administration (HRA). Rappo alleged that HRA had failed to reasonably accommodate her disability.

The Appellate Division dismissed Rappo’s petition, explaining that at the time she made her request for a reasonable accommodation of her disability Executive Law §292(21) -- New York State’s Human Rights Law -- did not require an employer to provide "reasonable accommodations" of an applicant’s or an employee’s disability.

Further, the court said that substantial evidence supports the determination that HRA was not required to provide Rappo with a job transfer as a reasonable accommodation, since she failed to demonstrate that she could not perform the essential duties of her then present job and that she would be able to perform the essential duties of another job.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09447.htm

Failure to designate the §75 disciplinary action hearing officer in writing is a fatal procedural defect

Failure to designate the §75 disciplinary action hearing officer in writing is a fatal procedural defect 

Arthur v  Soares,  2012 NY Slip Op 04255, Appellate Division, 3^rd Dept.

The Albany County District Attorney, P. David Soares,  filed disciplinary charges pursuant to §75 of the Civil Service Law against one of his subordinates, D. Richard Arthur, then serving as the office’s Director of Administration.

The Hearing Officer found Arthur guilty of the charges and recommended that he be terminated from his position. Soares adopted the hearing officer’s findings and recommendation and dismissed Arthur from his position. Arthur file a petition pursuant to Article 78 seeking a court order vacating Soares' action.

The Appellate Division annulled Soares' decision, finding “the record evinces that the Hearing Officer lacked jurisdiction.” and directed that Arthur be reinstated to his former position with back pay and benefits.*

The court noted that Civil Service Law §75(2), provides that a hearing on employee disciplinary charges "shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a . . . person designated by such officer or body in writing for that purpose" [emphasis supplied].

It is well settled, said the Appellate Division, that absent "a written delegation authorizing a deputy or other person to conduct the hearing," the hearing officer did not have jurisdiction to conduct the §75 disciplinary hearing,  citing Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385, among other decisions.

Significantly, the Appellate Division, Third Department had earlier ruled that the requirements of Civil Service Law §75(2) could be satisfied by a written record of such designation such as the minutes of a board meeting at which a resolution was adopted appointing the hearing officer or a letter to the hearing officer advising him or her that the official designation has taken place. In contrast, the court observed that “correspondence to the hearing officer that does not reference the official designation is insufficient, as is written notice to the [accused] of the hearing officer's identity.”

The Appellate Division found that there was no evidence in the record on appeal that the appointing authority had ever designated the Hearing Officer in a writing sufficient to satisfy the statutory requirement. The court specifically noted that reference to the designation of the hearing officer in the notice of charges sent to Arthur is not sufficient in the absence of any evidence of the written designation itself.”**

In addition, the employee’s failure to object to the absence of such written designation “is of no moment, inasmuch as this jurisdictional defect cannot be waived,” said the court, citing Gardner v Coxsackie-Athens Cent. School Dist. Bd. of Educ., 92 AD3d at 1095. This clearly implies that the individual being disciplined has no duty to inform the appointing authority of this procedural defect.

As the Hearing Officer lacked jurisdiction to conduct the hearing, his determination and Soares’ adoption thereof are nullities and Arthur, said the court, “must be restored to his former position with back pay and benefits.”

The court also noted that while courts employ the substantial evidence standard of review in resolving challenges to Civil Service Law §75 determinations, the disciplinary hearing officer does not review an employer's disciplinary actions taken against a public employee "to determine whether those actions were undertaken based upon substantial evidence," as occurred in Arthur's disciplinary proceeding; rather," it remains the responsibility of the hearing officer to weigh the evidence and resolve credibility determinations."

Further, said the court, "administrative findings of fact must be made in such a manner that the parties may be assured that the decision is based on the evidence in the record, uninfluenced by extralegal considerations, so as to permit intelligent challenge by an aggrieved party and adequate judicial review."

* The Appellate Division also held that the hearing officer “did not properly weigh the evidence, and failed to adequately detail the specific factual findings and hearing evidence relied upon.”

** Such notice to the accused has been deemed to satisfy the statutory mandate when the appointing authority separately issues a written resolution incorporating the notice by reference (Scharf v Levittown Union Free School Dist., 294 AD2d 508, lv denied 98 NY2d 613).

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04255.htm

===================

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=======================

Employer’s abolishment of a position challenged

Employer’s abolishment of a position challenged
Eugenio v City of Yonkers, N.Y, 2012 NY Slip Op 04006, Appellate Division, Second Department

When the City Council of the City of Yonkers abolished the position of Clerk II Spanish Speaking, the former incumbent filed an Article 78 petition seeking a court order reinstating her to her former position with back pay. Supreme Court denied the petition and the Appellate Division affirmed the lower court’s dismissal of the petition.

The Appellate Division explained that "[A] public employer may abolish civil service positions for the purpose of economy or efficiency." In the event that action is challenged, the challenger “has the burden of proving that the employer did not act in good faith in abolishing the position."

Finding that Supreme Court properly determined that the former incumbent failed to sustain her burden of proving her position was abolished in bad faith, the Appellate Division commented that under the circumstances, the former employee’s request for further inquiry amounted to "no more than an expression of hope insufficient to warrant deferral of judgment"

As to mechanics involved in abolishing a position, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee from his or her position pursuant to these §§80 and 80-a of the Civil Service Law (1976 Opinions of the Attorney General 7).

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04006.htm

=========================

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=========================

Changing the employees’ tours of duty and work schedules alleged a violation of the employer’s duty to bargain in good faith

Changing the employees’ tours of duty and work schedules alleged a violation of the employer’s duty to bargain in good faith

Matter of the Town of Fishkill, Decisions of the Public Employment Relations Board, U-27331, U-27568

The Board affirmed a decision of an ALJ dismissing a portion of an improper practice charge filed by PBA alleging that the Town of Fishkill (Town) violated §§209-a.1(d) and (e) of the Public Employees’ Fair Employment Act (Act) when the Town changed the tours of duty and work schedules of two PBA officers thereby reducing their total weekly hours of work.

The Board rejected, as meritless, the PBA’s assertion that the ALJ misconstrued the allegations of the charge with the Board citing to the specific allegations of the charge.

The Board also rejected PBA’s claim that the ALJ erred in her conclusion regarding the number of hours worked by the two PBA officers noting that the evidence presented concerning the respective length of tours and workweeks was incomplete and confusing, at best.

Finally, the Board affirmed the ALJ’s conclusion that the Town had satisfied its duty to bargaining under the Act.

Due to the fact that the relevant contractual terms could reasonably be interpreted to have more than one meaning, the Board considered parol evidence in the record in determining that the Town satisfied its duty to negotiate the at-issue subject.